Two prominent constitutional functionaries recently expressed their
concern over the role played by the Indian Judiciary. The dividing line
between judicial activism and overreach is a thin one, ... a takeover of
the functions of another organ may, at times, become a case of overreach,
said the Prime Minister Dr. Manmohan Singh while the Lok Sabha Speaker
Somnath Chatterji maintained, Judiciary is not an overriding authority and
no organ has the right to emphasize powers of another, These assertions
have, in the wake of several apex court rulings, striking down executive
decisions and parliamentary legislations- the latest being the
constitutional validity of Schedule Nine and the stay on implementing 27
percent quota for backward class students, encouraged another round of
discussion as regards judicial review under the Constitution.

2 The success of a democracy, especially one based on a federal system,
depends largely on an impartial and independent judiciary endowed with
sufficient powers to administer justice. The framers of the Indian
Constitution, therefore, thought it fit to entrust the judiciary with vast
powers. The trinity of an independent judiciary, independent
constitutional review, and the supremacy of law operate together for the
working of a constitutional government.

3 The Indian Constitution explicitly establishes the doctrine of
judicial review in several Articles such as Arts.13, 32, 131 to 136, 143,
226 and 246

In fact, the study of constitutional law may be described
as a study of the doctrine of judicial review in action The courts have
power to strike down any law, if they believe it to be unconstitutional.
However, the research and statistics reveal that our courts have not been
trigger happy in striking down laws and on the contrary legislations
especially socio-economic legislations have generally been upheld. In the
words of Fazl Ali, J. ?the presumption is always in favour of the
constitutionality of an enactment, and the burden is upon him who attacks
it to show that there has been a clear transgression of the constitutional
principles.

4 The Constitution being a living document its provisions must be
construed having regard to the march of time and the development of law.
Initially, be it
Shankari Prasad or
Sajjan Singh or
A.K.Gopalan, the courts in India adopted an approach of literal and
narrow interpretation. However, in course of time, this judicial
positivism has transformed into judicial activism.

5 The decision in the
Maneka Gandhi and the post-Emergency judicial activism has inspired a
philosophy of constitutional interpretation, treating the Constitution not
as a mere index of rules but as assertion of the principles of
constitutionalism. Similarly, the doctrine of basic structure evolved in
Keshavananda Bharati, its effect, impact and working having been
examined in Indira Gandhi's (election case) ,
Waman Rao's,
Minerva Mills and
I.R. Coelho cases are all milestones for the affirmation of judicial
review in Indian constitutional jurisprudence. The assertion that, the
Supreme Court has been assigned the role of a sentinel on the quinine for
the protection of the fundamental rights? is certainly a tribute to the
role played by the judiciary in India. Arts. 14, 19 and 21 represent the
foundational values which form the basis of judicial review apart from the
rule of law and separation of powers,

6 Is it then permissible for Parliament to immunize legislations from
fundamental rights by inserting them into the Ninth Schedule and, if so,
what is its effect on the power of judicial review of the Court

7 Art.31B and the Ninth Schedule were added to the Constitution by the
First Amendment Act 1951

The sole objective of the exercise is to
assist the State to bring about agrarian reforms providing for economic
justice; and immunize certain acts and regulations from a challenge on the
ground of violation of fundamental rights. In effect, this measure has
deprived the courts of the power to scrutinize the validity of such
enactments. The Supreme Court by a majority upheld the amendment in the
Shankari Prasad case. However, what was thought to be some exception to
the enforcement of Fundamental Rights became an unchecked and rampant
exercise of the power, the number of enactments inserted in the Ninth
Schedule having gone up from 13 to 284. The exercise of such power means
the absence of full power of judicial review so as to determine the
constitutional validity of such an exercise. Does not such a step offend
the doctrine of basic structure of the constitution, propounded in the
Keshavananda Bharati

8 The judgment in
I.R. Coelho v. the State of Tamil Nadu has answered this question by
establishing the pre-eminence of judicial review of each and every part of
the Constitution. The Court has laid down a two-fold test: (a) whether an
amendment or a law is violative of any of the Fundamental Rights in Part
III (b) if so, whether the violation found is destructive of the basic
structure of the Constitution. If the court finds that the impugned
enactment damages the basic structure of the Constitution, it shall be
declared void, notwithstanding the fictional immunity given to it by
Article 31B.Thus, the basic structure doctrine requires the State to
justify the degree of invasion of Fundamental Rights in every given case;
and this is where the court's power of judicial review comes in.

9 The power of judicial review, being "the very soul of the Constitution,"
is certainly a delicate exercise. Except in Article 363, the Constitution
has not envisaged imposition of any jurisdictional embargo on the Supreme
Court; and this is sufficient enough to identify the depth and width or
extent of its powers (P.Ramachandra Rao Vs State of Karnataka, (2002) 4
SCC 578). It is for this very reason that the Court has to function within
the established parameters and constitutional bounds. The judiciary
entertaining Public Interest Litigation leading to ?judicial activism? has
of late been conceived as problem area. As judicial activism and judicial
restraint are the two sides of the same coin, efforts must be made to see
that the former does not lead to judicial adventurism.

10 The judiciary should act as a catalyst only to expedite the process of
eliminating executive inertia, but without itself involving in the actual
administrative process. In the circumstances, some degree of tension is
natural and to some extent desirable, as pointed by Chief Justice
K.G.Balakrishnan. However, friction can be avoided if each organ of the
state correctly understands and respects the constitutional functions of
the other.
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